Waters v. Earthlink
Citation Waters v. Earthlink, Inc., 2006 WL 1843583 (Mass. Super. June 19, 2006). Factual Background In 1998 Mr. West Waters of Wellfleet, Mass. contracted for Internet services with Cape Internet, a local ISP. “For a monthly fee the plaintiff received internet access, email, and web hosting. He used the web hosting services to support a website for his business, Codder’s House of Furniture.” The parties did not sign a written contract; but Cape Internet’s user agreements were posted on its internet site. Waters claims that “his agreement with Cape Internet provided ‘unlimited Internet access.’” In September 1999 OneMain.Com bought Cape Internet with its 18,000 customers. In the spring of 2000, OneMain “removed Cape Internet user agreements from the web and in their place posted a copy of the OneMain Agreement which included a Warranty Disclaimer and said that services were provided ‘as is.’” In September 2000 Earthlink acquired OneMain.com. In October, Earthlink integrated the former Cape Internet accounts (including Mr. Waters’) into its own system creating numerous problems, such as changing 2,000 customers’ passwords, and another 2,000 customers’ user IDs, and opening up the Cape Internet accounts to Trial Court Proceedings On August 1, 2001, Waters filed a class action in the Superior Court of Barnstable County, Massachusetts (commonly named Cape Cod) against OneMain and Earthlink for breach of contract and violation of Mass. General Laws, Chapter 91A (the Massachusetts version of Section 5(a)(1) of the Federal Trade Commission Act, prohibiting “unfair or deceptive acts or practices.”15 U.S.C. §45(a)(1). On November 5, 2001, defendants removed the action to the Federal District Court of the basis of diversity jurisdiction, and then moved to dismiss the case or stay it pending arbitration, claiming that the contract between them and Waters included an arbitration agreement. On March 23, 2002 the District Court Judge Keeton denied the order without prejudice, permitting discovery to proceed because defendants had not established that Waters had agreed to any arbitration. Appellate Court Proceedings Defendants appealed, arguing that Judge Keeton was wrong in “(1) concluding they had not established the existence of a binding [agreement|agreement to arbitrate between themselves and plaintiff and (2) ordering unlimited discovery.” The First Circuit, in an unpublished per curiam opinion, affirmed Judge Keeton’s orders.91 Fed. Appx. 697 (1st Cir. 2003). The Circuit Court opinion states: Turning to Judge Keeton’s conclusion that plaintiffs did not establish a binding arbitration agreement, the court notes that plaintiffs “submitted a copy of a OneMain license and service agreement that contains an arbitration agreement which purports to bind its customers, and an affidavit stating that links to the agreement were placed on the website of both the ISP with whom plaintiff had contracted and OneMain’s own website.” However, the court continues: The Circuit Court continues, expressing “serious doubts” that the case meets the amount-in-controversy requirements of $75,000: Trial Court Proceedings on Remand While the case was pending in the federal courts, the parties were also involved with discovery. On July 9, 2004, in a reverse twist, plaintiff Waters moved for class certification. However, Judge Keeton had retired without ruling on this issue. On June 17, 2005, Chief Judge Young of the federal district court remanded the case to the Barnstable Superior Court. On October 27, 2005, Waters, still trying to show this litigation should be a class action, moved for certification of the class. Earthlink and OneMain.com opposed, “contending, inter alia, that (1) plaintiff’s claims are atypical, (2) individual issues predominate over common legal and factual issues, and (3) a class action would not be superior to other adjudicative methods.” Superior Court Justice Kane listened to the arguments on December 20th and rendered his initial decision on January 24, 2006,2006 WL 696468 (Mass. Super. Jan. 24, 2006). stating that he had studied the copious filing and determined that As to typicality, Judge Kane noted that the federal and state courts have different standards. The Massachusetts standard is “(1) whether the claims and legal theories . . . are sufficiently related; and (2) whether there is a link among the defendants sufficient to permit the class action to proceed against all defendants.” He determined this challenge to be “without merit.” As to the link among plaintiffs, known as predominance, Judge Kane notes that And, to emphasize these requirements, the parties were ordered to identify each request made for information, provide a summary response with attachments showing the source, and, “because of the age of this case and the need for prompt action, the court requires the submissions occur within 20 days of this order.” Relying on the plaintiff’s statements that when Earthlink, on May 2, 2001, gave Cape Internet customers five weeks to connect directly to an Earthlink server, defendants moved for summary judgment, even though Waters claimed he was unable to access the content to upload it to Earthlink, as reported at the beginning of this article. In an opinion released June 19, 2006,2006 WL 1843583 (Mass. Super. June 19, 2006). Justice Connon found for the defendants. With respect to the contract claims he wrote: Turning to plaintiff’s claim for damages from unfair and deceptive practices (Chapter 91A), Judge Connon also found for the defendants. He first noted that plaintiff was an individual, and since his business was not a party, he had no standing because he failed to send a demand letter pursuant to Chapter 93A, § 9. The judge then ruled that “defendants’ actions were not unfair or deceptive.” To be unfair it must be “immoral, unethical, oppressive, or unscrupulous; or within the bounds of some statutory, common-law or other established concept of unfairness,” citing a 1996 Massachusetts Appeals case. “The defendants’ conduct, as described by the undisputed facts, does not meet that standard.” He then ruled that “technological problems with the computer systems were not the result of an unfair or deceptive trade practice by the defendants.” Noting the problem listed by plaintiff, and construing these in “the light most favorable to the plaintiff, a fact-finder might infer that, at most, the defendants were incompetent or possibly even negligent in their maintenance of their computer systems. . . . if so plaintiff would not be entitled to 93A damages because negligence is not an unfair or deceptive trade practice.” He further ruled that Chapter 93A was not violated because defendants altered the contracts, or implemented the new contract just by posting it, and concluded: References Category:Case Category:Case-U.S.-State Category:Case-U.S.-Contract Category:Contract Category:Unfair or deceptive practices